The instruction taking process for Wills and Lasting Powers of Attorney can be a timely and sensitive process for clients. For this reason, it is important to have a good and trusting relationship with your clients where they feel comfortable that their wishes are being listened to and implemented in their estate planning documents, where possible. There may be occasions where you have a client that has concerns about who their assets should go to or feel strongly about anyone who should not benefit from their estate or they may simply become frustrated with the process itself.
What kind of issues could you face?
- The client refuses to sign the terms and conditions and provide ID
- A family member of the client insists on being present during the meeting along with any communication being sent to them instead of the testator
- The client refuses to listen to the advice you have offered them i.e. where you have advised on a trust as they may have a child with addiction issues
- The client is unhappy with the wording of the will and wants this amending
- The client is unhappy with the time taken to produce the documents
- The client believes they are being overcharged
Let’s take a look at each one
Client refuses to sign the terms and conditions and provide ID – if the client is refusing to do this at the outset then you should get to the root of the problem as to why this is and explain why obtaining these documents and ID is essential. It is important to discuss what the terms of business states and why this is in place i.e. protection for both you and the client and to ensure the terms of the agreement are clear and transparent.
A family member insists on being present and receiving communication – this depends on the individual facts. If someone is elderly and would like their child present during the meeting and to receive communication then you would need to meet with the client separately to ensure there are no concerns of coercion or undue influence. Providing there are no concerns this is fine but you should meet with the client after the meeting to ensure the instructions they provided are still in line with their wishes and if there any amendments, these are discussed directly with the client for them to confirm. It is important to add that during the meeting where someone else is present, the testator should respond to the questions only.
The client refuses to listen to the advice you have given or does not follow your advice – your client may have a child with an addiction and you discuss the option of a discretionary trust to ensure that child’s share is protected and not passed to them absolutely to prevent mis-use of funds. You may have another client with a vulnerable child where they choose to give the inheritance to their other child for them to use for the vulnerable sibling and you advise them of the risk of the child receiving the estate not passing anything to the vulnerable child along with the risks of a potential claim from the vulnerable child under the 1975 Inheritance Act. You may even have someone that is separating from their spouse and although the Will makes no provision for them, does not see the need for a specific exclusion clause. The client should be provided the full advice along with any risks so that they can make an informed decision and if they choose not to follow the advice you given, as long as your notes are detailed and set out your discussion, this is enough to protect you as the estate planner.
The client is unhappy with the wording of the Will and wants it amending – this depends on the amendments they wish to make and any effect it would have on the Will. If the wording is amended but is still legally correct with no ambiguity, making this amendment is fine. However, if the client is wanting the wording for a trust to be amended which would make it incorrect from a legal perspective, you should discuss with the client openly that it would not be possible to make this amendment and why.
The client is unhappy with the time taken to produce the documents – your terms of business should be transparent and clear with timescales for producing draft and final documents. If the documents are likely to be provided outside of this timeline, be open and transparent with the client and let them know in advance of the delay and provide a realistic timeframe by which the documents will be provided to them.
The client believes they are being overcharged – at the outset and before the instructions are taken, it is important to be open and clear with the client with regards to costs. If during the process the costs should change, inform the client beforehand, seek their written consent to ensure there is a clear record and then proceed. This could occur where the client initially wants a Will without the inclusion of any trusts and then later sees the benefit of a life interest trust of which there may be an additional cost. If once the invoice is issued, the client raises their concern of being overcharged, discuss with them as to why they think this is and then address any issues they have. Go back to previous correspondence if necessary and take your time to be clear with the client so they understand.
If you are faced with any of the above or a client that is indecisive, demanding or hostile it is important to remain empathetic to the client and professional. Our next article will provide some tips on how to deal with challenging clients.
